WAIVER AND SECOND AMENDMENT TO SECOND AMENDED
AND
RESTATED CREDIT AGREEMENT
This WAIVER AND SECOND AMENDMENT TO
SECOND AMENDED AND RESTATED CREDIT AGREEMENT dated as of August 7,
2008 (this “ Amendment ”), is executed by and
among WESTELL TECHNOLOGIES, INC., a Delaware corporation (“
Technologies ”), WESTELL, INC., an Illinois
corporation (“ Westell ”), TELTREND, LLC, a
Delaware limited liability company and successor by merger to
Teltrend, Inc. (“ Teltrend ”), CONFERENCE PLUS,
INC., a Delaware corporation (“ CPI ”, and,
together with Technologies, Westell and Teltrend, collectively, the
“ Companies ”, and each, individually, a “
Company ”), Technologies, as the representative for
the Companies (the “ Company Representative ”),
and LASALLE BANK NATIONAL ASSOCIATION, a national banking
association (the “ Bank ”), whose address is 135
South LaSalle Street, Chicago, Illinois 60603.
R E C I T A
L S :
A. The
Companies and the Bank entered into that certain Second Amended and
Restated Credit Agreement dated as of June 30, 2006 (as the same
may have been heretofore or may be hereafter amended, modified, or
supplemented from time to time, the “ Loan Agreement
”), pursuant to which Loan Agreement the Bank has made a
Revolving Loan to the Companies evidenced by that certain Amended
and Restated Revolving Loan Note dated as of June 30, 2006, in the
maximum principal amount of $40,000,000, executed by the Companies
and made payable to the order of the Bank.
B. The
Companies and the Bank have agreed to enter into this Amendment for
the purposes of (i) reducing the Revolving Commitments under the
revolving loan facility from $40,000,000 to $25,000,000; (ii) the
Bank waiving violations by the Companies of the Fixed Charge
Coverage Ratio and Total Debt to EBITDA Ratio covenants set forth
in Sections 11.14.1 and 11.14.3 , respectively, of
the Loan Agreement; and (iii) making certain other modifications to
the Loan Agreement, all in accordance with the terms and conditions
set forth herein.
NOW THEREFORE, in consideration of
the premises and other good and valuable consideration, the receipt
and adequacy of which are hereby acknowledged, the Companies and
the Bank hereby agree as follows:
A G R E E M
E N T S :
|
1.
|
RECITALS . The foregoing Recitals are hereby made a part
of this Amendment.
|
2.
DEFINITIONS . Capitalized words and phrases used herein
without definition shall have the respective meanings ascribed to
such words and phrases in the Loan Agreement.
3.
WAIVER OF DEFAULTED COVENANTS . The Companies have informed
the Bank that for the fiscal quarter ended June 30, 2008, the
Companies violated (i) the Fixed Charge Coverage Ratio covenant set
forth in Section 11.14.1 of the Loan Agreement, and (ii) the
Total Debt to EBITDA
Ratio covenant set forth in
Section 11.14.3 of the Loan Agreement (collectively, the
“ Defaulted Covenants ”). The Companies agree
that, as a result of such Defaulted Covenants, Events of Default
have occurred under Section 13.1.5 of the Loan Agreement.
The Companies have requested and the Bank agrees to waive
compliance by the Companies with the Defaulted Covenants for the
fiscal quarter ended June 30, 2008, as well as the resulting Events
of Default. This waiver shall apply only to the violations referred
to above and only for the period described above, and shall not be
deemed to be a waiver of any future violation of Section
11.14.1 or Section 11.14.3 of the Loan Agreement, or of
any violation of any other covenant or provision of the Loan
Agreement, whether such violation currently exists or arises
hereafter, nor shall this waiver prejudice any rights or remedies
which the Bank may have or be entitled to with respect to such
future violations or defaults.
|
4.
|
AMENDMENTS TO THE LOAN
AGREEMENT .
|
4.1
Revolving Commitment . The definition of “Revolving
Commitment” in Section 1.1 of the Loan Agreement is
hereby amended in its entirety and replaced with the
following:
“ Revolving Commitment
means $25,000,000, as such amount may be reduced from time to time
in accordance with Section 6.1 .”
4.2
Note . All references in the Loan Agreement to the Note
shall be deemed to be references to the Modification Amended and
Restated Revolving Loan Note in the form of Exhibit A
attached to this Amendment and made a part
hereof.
5.
REPRESENTATIONS AND WARRANTIES . To induce the Bank to enter
into this Amendment, each Company hereby certifies, represents and
warrants to the Bank that:
5.1
Organization . Each Company is duly organized, existing and
in good standing under the laws of the State of its organization
with full and adequate power to carry on and conduct its business
as presently conducted. Such Company is duly licensed or qualified
in all foreign jurisdictions wherein the nature of its activities
require such qualification or licensing. The Articles of
Incorporation and Bylaws or Articles of Organization and Operating
Agreement, as applicable, and Borrowing Resolutions and Incumbency
Certificate of such Company have not been changed or amended since
the most recent date that certified copies thereof were delivered
to the Bank. The exact legal name of each Company is as set forth
in the preamble of this Amendment, and such Company currently does
not conduct, nor has it during the last five (5) years conducted,
business under any other name or trade name. Such Company will not
change its name, its organizational identification number, if it
has one, its type of organization, its jurisdiction of organization
or other legal structure.
5.2
Authorization . Each Company is duly authorized to execute
and deliver this Amendment and is and will continue to be duly
authorized to borrow monies under the Loan Agreement, as amended
hereby, and to perform its obligations under the Loan Agreement, as
amended hereby.
2
5.3
No Conflicts . The execution and delivery of this Amendment
and the performance by such Company of its obligations under the
Loan Agreeme
